Archive for May, 2013

Don’t smoke in bed

May 28, 2013

In April 2011 Ms Greene rented a house at Eastwood for 12 months at $400 per week.

In May 2011, the house was rendered uninhabitable as a result of a fire.

The fire was caused either by a cigarette lighter dropped on the bed or a candle knocked over by accident when Ms Greene and her wheelchair-bound boyfriend, Mr Brown, were sharing a cigarette.

The landlord sued for damages: Liang v Greene by her tutor the NSW Trustee and Guardian [2013] NSWDC 74.

The matter came before Judge Elkaim for hearing on 27 May 2013.

Most of the plaintiff’s evidence was inadmissible and counsel for the defendant (Ms Greene had in the meantime become the subject of an order by the Mental Health Review Tribunal, so that the NSW Trustee and Guardian was conducting her defence) successfully objected to it.


Modified triumph.  Judge Elkaim proposed to grant the landlord an adjournment, subject to the question of costs, to fix up her evidence.  “Subject to the question of costs” basically means subject to the plaintiff paying the defendant’s costs thrown away by the adjournment.

Counsel for the defendant sought instructions.  She withdrew the objections.

Judge Elkaim said “This approach seemed unusual to me as the inadmissible material all came back into consideration as evidence submitted by consent.”  Well, that all depended on the adjournment, really.  If it had been refused things might have been different.  I suppose it was worth a try.

Under the lease, the tenant was liable for her negligence and also for that of Mr Brown as a person on the property with her permission.  The defendant sought to say that negligence had not been proved.

The judge was of the view that section 5B of the Civil Liability Act led to a finding of negligence.  That’s the section about taking reasonable precautions when there is a risk of harm (you can look at it).  He said:

21There is a clear risk of damage to property if a candle or cigarette lighter is allowed to fall onto a mattress. This is not an insignificant risk. It is well known that smoking in or near a bed is a source of house fires. Further, in my view, a reasonable person would take precautions to avoid the use of open flames in circumstances where contact with the open flame might lead to a fire.

22In relation to Section 5B(2), I am satisfied that there is a high probability that harm would occur if care was not taken. A flame introduced to a mattress or other bed clothing gives rise to a high likelihood of harm. Any fire has a likely seriousness of harm. The burden of taking precautions to avoid the risk of harm in these circumstances is light. One simply does not smoke or have candles near a bed. I do not think that Section 5B(2)(d) is relevant.

That last comment is a reference to a clause which takes into account as a countervailing consideration “the social utility of the activity that creates the risk of harm.”

This conclusion held whether the fire was caused by the lighter or the candle.  (Because as tenant Ms Greene was responsible for her de facto’s conduct, it similarly didn’t matter which of the two had been careless.)  Actually, it’s not clear to me why the question of negligence arose at all, except as a means of imputing causation to the acts of either Ms Greene or Mr Brown.  I didn’t think that a tenant’s liability for damage caused by the tenant or the tenant’s invitees to rented premises depended on those actions being careless.  Obviously there is more to this case than meets the eye, but it hardly seems like a case of “ordinary wear and tear.”

At the time of the fire, the premises were uninsured because the landlord had forgotten to renew her insurance policy.  The premises had still not been remediated or relet because the landlord did not have the money to do so.  The landlord sought damages for the cost of repairs, as well as for loss of rent to date and for a short period to allow the repairs to occur.

The judge awarded $226,000 for the repairs, but nothing for the loss of the rent.

This was for two reasons.

First, the landlord had already made a claim in the CTTT for loss of rent for the remainder of the term of the lease.  That claim had already been settled.  The judge therefore took the approach that the landlord could only now claim for loss of rent after the lease would have come to an end.  This applied to the period from May 2011 (when the fire occurred) to May 2012 (when the lease was due to expire).  That still

Secondly, there had been a failure to mitigate.  The judge referred to the lease, which applied the rules of mitigation to loss and referred to loss which”could have been avoided by reasonable effort by the landlord” as loss which the landlord could not recover.

In my opinion the full clause only uses those words as a kind of plain English example to explain the rule, and the example should be interpreted in that light:

The rules of law relating to mitigation of loss or damage on breach of a contract apply to a breach of this agreement. (For example, if the tenant breaches this agreement the landlord will not be able to claim damages for loss which could have been avoided by reasonable effort by the landlord.)

The judge observed:

“Generally a failure to mitigate a loss only arises after the loss has materialised. I do not see why the same approach should not be taken in anticipation of a loss.”

“I do not see why not” is a pretty loose form of legal reasoning.  If people start being able to get away with contractual damages because the other party could have insured against the loss in question, a lot of the legal landscape is going to look rather different.  And if the landlord had insured against loss of rent consequent on fire damage, then it doesn’t really mean that the landlord would have lost nothing.  The landlord might not be out of pocket, assuming the insurer paid up, but the insurer would be entitled to sue in the landlord’s name to recoup what it had paid out.

Probably the judge’s reasoning in this particular case was probably not quite on all fours with that example.  If the landlord had been insured and the insurer had paid up, the repairs would have been finished sooner and there would have been no loss of rent from the end of the lease – or so he held.

Nevertheless, (and this is more for lawyers than any other lucky readers) the claim for the extra period of vacancy because the landlord didn’t have the money to do the place up seems more like a Hadley v Baxendale limb 1 or 2 case about causation than a question of mitigation.  Even if so, mitigation would apply to questions such as what steps Ms Liang took to seek a loan to undertake the repairs.  The strange thing to me about Ms Liang’s case is that it seems to assume that the judgment will lead to recovery of money which will enable her to undertake the repairs.

So, don’t smoke in bed (or even have candles near your bed) and don’t forget to renew your fire insurance.  It’s all pretty simple really.

You have been warned.



May 23, 2013

From a recent story in the SMH about Brad Pitt:

Jolie’s recent revelation that she had a preventative double mastectomy has brought the couple even closer. “We knew this was the right thing to do for our family and that it would bring us closer. And it has,” Jolie said.

Mind your own business

May 15, 2013

Opera Australia has issued a statement regarding artist contracts.

This is the central bit:

Opera Australia has put before the minority of principal singers who have been engaged on 52 week contracts a proposal to undertake more flexible employment arrangements. It is regrettable that this has been partially reported in the media. We think it appropriate to continue to discuss the proposals directly with the singers affected and their agents and union, before responding publicly to questions about any new arrangements.

There is more of the usual about the company’s financial position and the success of the company’s new strategies.  The estimation of that success is in fact the whole issue.

The whole thing is bookended by the following rather amusing paragraphs:

Opera Australia would like to thank everyone who has expressed interest in the future of the company and its artists.


Opera Australia  is continually working to respond to its audiences and improve its financial position. It is true that this change is challenging for the company and artists involved and we thank all of the company’s supporters for their concern.


May 13, 2013

Despite my blog quietism, I have been going to a few concerts.  As much for my own future reference as anything else, these are those which I have not mentioned here so far.

SSO – 15 March

Joyce Yang played Tchaik 1; of the two obscurities, Dvořák’s Othello overture made a stronger impression than Tchaikovsky’s Fatum; Respighi’s Roman Festivals was the big finish. It’s too distant in the past for me to give any more informative or detailed comment.

SSO – 18 March

Joyce Yang in recital. I’m afraid despite her advocacy, I still cannot really warm to Bartok. It’s not just the idiom, I think it must be his personality. He is the composer of that kinky (and by contemporary standards also rather racist in the inscrutable oriental sense) Miraculous Mandarin, though I suppose he can’t be held entirely responsible for the ballet’s scenario.

SSO 5 April

Reinhard Goebel led the SSO through a rare excursion into earlier music. We got two out of three of the Water Music suites in what was claimed to be a more authentic sequence, though the lack of the first suite detracted a bit from that. The orchestra obviously warmed to Goebel but for me the venue is a bit big for some of this stuff. The revelation was the final Chaconne by Berton which is a bit of a calling card of Goebel’s.

Australia Ensemble 18 April

My friend P was following her son at a youth orchestra concert in Penrith, so I took my younger sister, visiting from rural WA.  My nephew (aged 12) also came.  He was a bit disappointed there wasn’t a trombone, since that is the instrument he is learning.  Faced with a Dvořák string quintet in the second half we let him play with his DS in the foyer.  The front-of-house staff offered him a free sandwich (more accurately, they are dinner-roll-sized little filled rolls) when they were clearing up.  I was shocked to learn he declined the offer.

SSO 2 May

This was a “Meet the Music” concert but it was also a program which notably drew out (if I may say so myself) the cognoscenti. The whole Dulwich Hill gang and their associates were there in force as well as other notables. The attraction was Thomas Ades conducting his own work Polaris (without the visuals commissioned from his better half to go with it on its first performance), matched rather well with the Lutoslawski Cello Concerto (Peter Wispelwey), Sibelius 6 and, less obviously, Beethoven’s Namensfeier Overture. The Lutoslawski and the Ades fared the best, though the effect of the Ades rather depended on not sitting too closely (as a friend of mine did) to one of the antiphonal gallery brass choirs.

SSO – 9 May Beethoven

Beethoven can still pack the house. This was also the first appearance (at least witnessed by me) since his appointment of Andrew Haveron, the new [co-] concertmaster.   It augured well. (Actually it seems from that link that Haveron is only here just now for a teaser and won’t be back for good until the beginning of next year.  It’s a bit like those government promises that phase in over a far-into-the-future period.)  Exceptionally, there were four men at the front of the first violins.

The concert opened with Weingartner’s arrangement of the Beethoven Grosse Fugue for string orchestra. This was testing for all and ultimately worth it, though I have to say there is something about a string orchestra which never really excites me. I know I’m showing my ignorance here but what exactly there was to arrange is a bit of a mystery beyond when to double the celli with the double bass and whether solo or tutti.

On the train home a friend offered the view that the Beethoven “Triple Concerto” is a “dud work.” I would say it is a bit at the “Wellington’s Victory/ Folk Song Arrangements” end of Beethoven’s oeuvre, but the thing about Beethoven is that in general (as you can see from the piano sonatas) he is almost incapable of writing a dud work. Is this the exception?

I think it is, at least when management yields to the the temptation (because 3 soloists are required) to field a local team. Mediocre or mediocre-ish works are just the pieces which require top-notch soloists. How top-notch they are or not is relative to the occasion: it is possible that Kirsty Hilton, Catherine Hewgill and Clemens Leske would make a good impression with a lesser orchestra, but we are used to better with the SSO. In the first movement, thunderous interjections from the piano kept making me (inwardly) ask “What’s up with grumpy?” Probably drama was intended but discomposure was the result.  When I did a bit of a you-tube browse afterwards I could find performances which had more dramatic tension (the absence of this is partly, I think, a result of Ashkenazy’s rather genial approach) in the first movement and quite a lot more what I would think of as aristocratic “Archduke”-ish polish.  They restored my faith in the work but showed up what this performance was lacking.

Fortunately, the Pastoral Symphony in the second half made up for this. Being Ashkenazy, it was a mellifluous and pretty straight down the middle approach (nothing unusually fast) but none the worse for that. I remain a sucker for muted strings and the second movement therefore remains my favourite.

It seems my subscription commitments to the SSO and the AE have effectively crowded out any more ad hoc concert-going.  I should try to do something about that because they are not the only shows in town.

To prove that, I also went, with my sister and nephew to see the touring production of “One Man Two Guvnors.”  It was expertly done though my having seen the original production as part of the National Theatre Live franchise somewhat took the wind out of its sails.  They enjoyed it without this impediment.

Part-time Opera company

May 6, 2013

Ominous news from Opera Australia, the company which saved money last year by axing 7 (some say 8) positions from the permanent establishment of the Australian Opera and Ballet Orchestra – something I referred to at an anecdotal level here.

Things are now being taken to the next level.  Apparently about 20 singers are to be “rested” – ie, laid off, for 6 to 12 weeks next year.  These are singers who up till now have been employed on 12-month contracts. Obviously, in the past, that must have included the odd gap between conspicuous onstage commitments (some of which would necessarily be taken up with preparation and also by covering others’ roles).

According to Lyndon Terracini, fresh from his astounding ten-year reappointment and much skiting at the annual general meeting,  if these singers are not singing they cannot be paid and it’s not good for them to be singing in parts for which they are not suited.  Get it, it’s for their own good!

An OA spokesperson says it is nothing at all to do with the projected production next year of the musical “Kismet.”

OK, yes, I know it’s “The King and I,” but so what?

Group portrait

May 4, 2013


Last weekend, when at Gulgong, we took a drive to Coolah Tops.

We had to revisit the grass tree colony once we were there.

Leaving aside the now (just a bit sadly, I think) proscribed old common name for these plants, there is still something oddly anthropomorphic about them.  In part, it’s their sociable habit of growing together.  I’m not sure of the exact reason for this – moisture and soil nutrients might be the entire explanation, but it is quite striking.

Our visit was all too short.  It is still my ambition to spend a longer time at this tucked away and (I’d say) relatively unknown national park.


May 4, 2013


My sisters and my younger sister’s son both visited me recently from London and WA.  Together we went to Canberra to see our father.  We also caught up with a paternal cousin who lives up the Putty Road.

He is a film maker.

I take that as the inspiration for this rustic trolly.  He has a number of such little wheeled items, constructed on the top of rescued toy prams and the like.

Our family hails from the West.  My father came to Sydney and my uncle lived for some years in Melbourne.

We, too, had a pack of  cards like one the packs in the picture. I suspect my cousin’s pack and our pack both came from our grandmother who came from Perth by train to visit us all a number of times.